Tuesday, October 14, 2014

A libertarian response to the traditionalist response to the libertarian objection to state-codified marriage

My
pal Guernsey just posted a link to this website, which attempts to defend
traditional marriage from a variety of critiques without (openly) employing
religious arguments. At first, I hesitated to respond. From a policy
perspective, the debate about whether we should have selective government recognition
of straight marriage is pretty much over for most Americans, and no impartial observer expects it will ever revert to old policies once gay marriage becomes legal in
all 50 states.

However,
it is my hope that the debate about
whether we need the state to recognize marriage at all has just begun, and it
turns out Guernsey’s site offered a
valiant effort at answering that critique. I admire the site’s valiant
attempt to put an argument in libertarian terms, so I thought I’d gently go
through it line by line.

They
write:

“Marriage
— whether it is officiated by a priest or a judge, has always had civil
implications, whether or not a civil magistrate requires prior permission.”

Maybe so, but who cares? What has always been need not, and often ought not, continually
be.

“Marriage simply puts the government on
notice that the married partners are now a family unit, and that they lay claim
to the natural duties and privileges that accompany procreative relationships.”

This quote uses marriage interchangeably with “procreative relationships.” But
they are not interchangeable: not all procreative relationships are marriages,
and not all marriages are procreative. I also look forward to an outline of
just what those “natural duties and privileges” allegedly are.

“it’s true that requiring a “government
permission slip” (issued by a magistrate or judge) prior to marriage is a
modern phenomenon that has been used to oppressive ends. However, this doesn’t
mean that prior to marriage licensure, married partners incurred no legally
enforceable moral duties to each other”

I’m glad they seem to agree that government’s should merely “recognize”, as
opposed to “permit,” marriage. But again, they have yet to specify which “legally
enforceable moral duties to each other” marriage allegedly entails. Perhaps
that’s because there are none which they could state openly on libertarian
terms.

“Consider a state-of-nature exercise:
Does a father have any inherent obligations to his children and their mother,
irrespective of any prior to any contract or agreement he’s made?”

That
was sneaky – not the state of nature exercise itself (which I heartily
applaud), but sneaking in “to his children” and “their mother” into the same
question. They are different questions. A father does have inherent obligations
to his children – namely, to provide them with basic food, shelter and care –
but he does not have any to the mother barring additional agreements. Having sex
with someone does not carry with it any “duties”or “obligations” to that person
beyond the act itself (and certainly not any that are legally enforceable!) whether
or not the sex results in childbirth. I suspect the website’s authors would
disagree, but stating why would require them to use polarizing and subjective
religious arguments.

“Does a mother have a legitimate claim
upon the father of her children, irrespective of and prior to any contractual
agreement or civil legislation?”

No.
What does that even mean, to have a “legitimate claim” to another person? Does
it imply ownership? I’ve heard of having “legitimate claims” to the throne, or
to the heavyweight boxing title, but never to another human being.

“Do parents have a natural right to
raise their children together according to their own discretion (absent severe
abuse or neglect), regardless of whether civil governments respect that right?”

Yes.
They in no way need the government to do that.

“If the answer to each of these
questions is yes, then procreative intercourse gives rise to obligations (as
well as rights and privileges) that spouses have with regards to each other and
their children. Civil marriage is simply the process by which courts minimally
acknowledge, respect, and on rare occasions enforce or defend these obligations
and rights, just like it acknowledges, respects, and defends property rights
(by providing recourse in a court of law when they are violated).”

The
first sentence again uses “procreative intercourse” interchangeably with “spouses.”
They are by no means interchangeable, as I’ve already explained. But the bigger
problem here is that they’re building off a foundation their libertarian
audience has not yet accepted. The answer to those questions was not always
yes. Many of the obligations they very vaguely alluded to with rhetorical questions
do not exist. Civil marriage is therefore not the process by which courts “acknowledge”
those obligations, but the process by which they invent and impose those
obligations.

“Courts typically acknowledge marital
rights and duties by promoting permanence, treating marriage and family as an
autonomous legal unit, and enforcing the ongoing duties of material care and
support (such as alimony, child-support, etc.) when the relationship otherwise
breaks down.”

Finally
we get some specifics here, but they’re not ones libertarians would support.
Lifelong permanence is not a duty of having sex. It cannot, I suspect, be
called a duty of having sex without venturing into quasi-religious waters which
the vast majority of people no longer support. As such, promoting permanence is
not “acknowledging” anything we libertarians already agree exists, it’s just
pontificating about the highly subjective desirability of extending a relationship
long term.

The
courts are justified in enforcing child-support, but that is a parental obligation,
not a marital one. Courts can and do enforce child-support even among families
that were never married. And alimony is a pure fiction of the state that
certainly does not exist as an inherent or natural obligation in the state of
nature. Of course, the state of nature does permit consenting adults to agree
on terms of separation amongst themselves. And under a libertarian state, if they
write the terms of this agreement down in a contract, they can enlist the help
of courts to enforce them. But none of this involves “acknowledging” anything
inherent in the natural order of things, and none of it requires marriage.

“When a woman approaches a judge with a
claim that her husband has violated his marital duties (for example, that he
has neglected to materially care for and support the family)…”

Once
again they use “the family” instead of “the children” so they can pretend it’s
obvious there’s not a difference. Fathers and mothers have a responsibility to
materially care for their children, but not for each other. Declining to give money
to that person with which you had or have sex is not “neglect.”

Stella Morabito explains “When a
couple enters into a civil marriage, they are not inviting the government into
their relationship, but rather putting the government on notice that they are a
family unit,”

But marriage is not necessary to put the government on notice that you
are a family unit: unmarried families notify the government of this every day.
Inversely, putting the government on notice that you are a family unit is not
necessary to get married. Or at least, it shouldn’t be, which is what
libertarians are fighting for.

“Isn’t marriage just a contract like any other?

Some think so, but we don’t. We think that when a man and a
woman get together and engage in procreative intercourse, they obligate
themselves — in legally enforceable ways — regardless of whether they
signed a contract or not….By engaging procreative intercourse, men and women
step into a web of duties that they cannot blithely ignore without consequence
to innocent third parties. Civil marriage is simply a legal mechanism by which
the obligations that spouses have towards each other and their children have
been minimally recognized by
state authorities.”

This
hits upon the crux of the matter. The best rebuttal I can give is that they’re
simply wrong. Procreative intercourse does NOT step into a web of duties. It
steps into one duty: if you happen to make a kid, and the mother decides to keep it within her beyond the point when it develops into a living human being, you both have to help keep it alive until it’s old enough to do that for itself. No other consequences are imposed on third parties by the behavior of having sex, and certainly not consequences so immoral as to justify state interference.

“Consider:
does a man only have obligations to his children if he signed a contract
agreeing to those obligations? If not, then why would his obligations to their
mother be different?”

For
the very good reason that there are no obligations to the mother! At least, not
beyond those which all individuals have to one another (respect their rights,
don’t kill or steal from them, honor your promises, etc). I concede the
obligation to the child preexists any contract, because the child has a right
to life which it cannot possibly sustain itself, and so the only two people who
bear responsibility for the need to keep it alive are the parents. But mothers
can sustain themselves! There are very real distinctions between the many types
of obligations this article loosely alludes to, and libertarians will not be
convinced by vaguely glossing over them.

Update:

In addition to responding to it line by line on this blog, I wrote the following comment to the authors of the blog (which has some redundant overlap with the above, but functions more as a summary):

As
a libertarian, I found your argument unconvincing. That said, I also found it
polite and fun to read, and appreciate the attempt to reach out and make a case
on libertarian terms. In the interest of advancing the debate, I thought I’d
help you improve your argument by pointing out where it falls short from the
libertarian vantage point.

The
main problem is that you are building off a foundation that most libertarians
have not yet accepted: the notion that all procreative relationships carry
inherent moral duties and obligations in a state of nature, and furthermore
that we all agree on precisely what they are. You provide a full list of what
these duties and obligations allegedly are (merely alluding to them with rhetorical
questions in the “state of nature exercise”) but throughout the article you mention
material provision for mutual spawn, material provision for one another, union
into a single political and economic unit, fidelity, and permanence. I agree
with only the first item on that list. Since we do not need civil marriage to
enforce child support, that doesn’t convince me.

From
that point forward, the rest of your argument falls without this foundation. If
the obligations do not exist, civil marriage is not the process by which they
are acknowledged, but the process by which they are invented and imposed. Libertarians
believe the state should not impose subjective moral judgments on its subjects.
And without the need to enforce or defend those pre-existing obligations, civil
marriage serves no purpose which voluntarily consenting adults cannot serve
just as well or better with contracts and the like.

Perhaps the reason you did not specify those duties and obligations is that
justifying them individually would require wading into highly subjective,
quasi-religious waters. The closest you get comes in the “Isn’t marriage just a
contract?” section, in which you ask why a father’s obligations to the mother
are “any different” from those to his children. Seriously? Well for one, mothers
can feed themselves and live on their own, just as they presumably did before
intercourse took place. You get the point I’m making here: there are very real
distinctions between the many types of obligations this article loosely alludes
to, and libertarians will not be convinced they come as a bundle by vaguely
glossing over those distinctions. I suspect you will have a difficult time persuading
libertarians that having sex carries with it legally enforceable or promotable moral
duties to remain in permanent, sexually exclusive lifelong relationships “irrespective
of and prior to any contractual agreement or civil legislation,” though I do
hope you’ll at least advance the debate by taking on the endeavor at greater
length.